JURISDICTION: South Australian Employment Court

Fair Work Act 2009 (Cth)

DECISION OF: His Honour Deputy President Lieschke

Pecuniary penalties - Contraventions of the National Employment Standards by breaches of the General Retail Industry Award requirements for correct classification, rostered times for meal breaks and 10-minute rest breaks, minimum Award rates, weekly overtime rates, Saturday and Sunday loadings, uniform allowance, superannuation contributions, display of Award - Contraventions of the additional NES requirements for payment of wages for all hours worked, and provision of a Fair Work Information Statement - Contravention of obligation to keep time worked records - Total entitlements of $8,734 were denied to a casual employee over 14 months - Second respondent was involved in each contravention - No rectification of monetary contraventions other than superannuation - Held: No contrition - Second respondent is highly experienced in running retail businesses - Need for strong deterrent for both respondents - First respondent to pay a total penalty of $92,000 - Second respondent to pay a total penalty of $56,000

Fair Work Regulations 2009

Pumpa v Barossa Retail Food Pty Ltd & Totos [2025] SAET 80

Olefir v Brazil Catering Pty Ltd [2024] FWC 1584

Australian Building and Construction Commissioner v Pattinson [2022] HCA 13

1. Zara Pumpa was employed as a casual retail worker by Barossa Retail Food Pty Ltd (BRF) from 15 February 2021 to 17 February 2022. Ms Pumpa was not paid $8,734 for a range of minimum entitlements for her work. Certain other non-monetary rights under the General Retail Industry Award 2020 (the Award) were denied_._ Dimitrios Totos was involved in all breaches, as the sole manager and director of the business.
2. Ms Pumpa and the Shop, Distributive and Allied Employees' Association now apply under s 546 of the Fair Work Act 2009 (the Act) for the imposition of pecuniary penalties on BRF and Mr Totos for 14 proven contraventions of the minimum National Employment Standards of the Act_._
3. Mr Totos registered BRF as a company in early 2020 to operate a retail business out of a shop in Nuriootpa. BRF then took over existing retail operations under agreement with the shop's previous operator, for whom Ms Pumpa had worked.
4. Ms Pumpa was employed on a casual basis for about the first six months, and on a full-time basis for the second six months.
5. BRF has accepted it committed 14 different contraventions against Ms Pumpa. These were based on underpaying all casual hours worked and disregard of various other Award conditions.
6. On 15 April 2024, this Court made the following declarations of contraventions by the former employer BRF:[1]
   1. Further to the entry of default judgement against the Respondent, the Court makes the following declarations pursuant to section 26A of the South Australian Employment Tribunal Act 2014 (SA):-
      • 1.1 The Respondent contravened section 45 of the Fair Work Act 2009 (the FW Act) by failing to classify the Applicant at the Retail Employee Level 3 classification as required by clause 14.1 of the General Retail Industry Award 2020 (the Award);
      • 1.2 The Respondent contravened section 45 of the FW Act by paying the Applicant less than the applicable minimum hourly rate required by clause 11.1 of the Award;
      • 1.3 The Respondent contravened section 323(1) of the FW Act by failing to pay the Applicant for 3 hours or at all for work performed on 24, 25, 27 and 31 January 2022;
      • 1.4 The Respondent contravened section 323(1) of the FW Act by failing to pay the Applicant at all for work performed between 31 January 2022 and 14 February 2022;
      • 1.5 The Respondent contravened section 535(1) of the FW Act by failing to make and / or keep records specifying the hours worked by the Applicant on each day;
      • 1.6 The Respondent contravened section 45 of the FW Act by failing to pay the Applicant any penalty rate for time worked on Saturdays and paying the Applicant less than the minimum amount required by clause 22.1(b) for time worked on Saturdays;
      • 1.7 The Respondent contravened section 45 of the FW Act by paying the Applicant less than the minimum amount required by clause 22.1(b) of the Award for time worked on Sundays;
      • 1.8 The Respondent contravened section 45 of the FW Act by failing to pay the Applicant any overtime rate for time worked in excess of 38 hours per week and paying the Applicant less than the minimum amount required by clause 21.2(c)(i) for time worked in excess of 38 hours per week;
      • 1.9 The Respondent contravened section 45 of the FW Act by failing to pay superannuation contributions for the benefit of the Applicant in an amount necessary to avoid being required to pay the superannuation guarantee charge as required by clause 20.2 of the Award;
      • 1.10 The Respondent contravened section 45 of the FW Act by failing to pay the Applicant the laundry allowance required by clause 19.3(c)(ii) of the Award;
      • 1.11 The Respondent contravened section 45 of the FW Act by failing to provide the Applicant with 10-minute paid rest breaks as required by clause 16.2 of the Award;
      • 1.12 The Respondent contravened section 45 of the FW Act by failing to include the timing of rest and meal breaks and their duration in rosters as required by clause 16.3 of the Award;
      • 1.13 The Respondent contravened section 45 of the FW Act by failing to make copies of the Award and the National Employment Standards available to the Applicant as required by clause 3.3 of the Award; and
      • 1.14 The Respondent contravened section 44 of the FW Act by failing to provide the Applicant with the Fair Work Information Statement as required by section 125(1) of the FW Act.
7. Mr Totos was found to have been involved in all contraventions after a trial of the issue. My conclusions briefly summarised the manner of Mr Totos' involvement as follow:[2]

I find Mr Totos to be a highly experienced and sophisticated business operator. Mr Totos had sole management and control of the business of operating the store. He exercised a high level of control over a wide range of business and operational matters. He was the sole decision maker in all matters relevant to Ms Pumpa. Mr Totos used the Deputy software and employed a bookkeeper to assist him in managing at least two stores at the time.

1. Mr Totos was responsible for hiring, inducting, training and supervising Ms Pumpa.[3] He was aware of a classification structure in the Award. He told Ms Pumpa what duties to perform, directed her work, and monitored her performance in person, or remotely. He knew she had to regularly open and close the store, work alone, and perform the closing cash duties.[4] Mr Totos set a rate of pay for her allocated duties without regard to the binding classification criteria, which he knew existed.
2. I found Mr Totos "knew the Award rates increased each year, and knew that Ms Pumpa's rate of pay did not change over the year of her employment."[5]
3. I found Mr Totos personally decided BRF would not pay weekly overtime rates, and that he rostered her for weekly overtime in 18 weeks.
4. I found Mr Totos knew that Saturday penalty rates existed, but did not apply them to Ms Pumpa's regular Saturday shifts.
5. I found Mr Totos did not approve any pay for Ms Pumpa for her attending work, when not rostered, to perform closing duties on three days in January 2022.
6. I found Mr Totos decided to pay nothing to Ms Pumpa for her last two weeks of work.
7. I found Mr Totos controlled all superannuation contribution payments.
8. I found Mr Totos directed Ms Pumpa to wear a uniform and knew that BRF did not launder it.
9. I found Mr Totos set and varied Ms Pumpa's shifts. The shifts built in 30-minute unpaid meal breaks without specifying their times but omitted rest breaks.
10. I found Mr Totos was aware no Fair Work Information Statement (FWIS) and no Award terms and conditions were made available to Ms Pumpa.
11. I found Mr Totos was responsible for BRF not making and/or keeping records of all hours worked by Ms Pumpa, contrary to s 535(1) of the Act.
12. The maximum penalty for a contravention committed between February 2021 and February 2022 by a corporation was $66,000, and by an individual person was $13,200.

1. I have had regard to the evidence admitted in the preliminary hearing of Mr Totos' disputed involvement, including his affidavit and two affidavits of Ms Pumpa, and their respective oral evidence.
2. Mr Totos did not challenge the evidence given by Ms Pumpa in the penalty hearing. I accordingly accept as truthful her evidence as summarised below.
3. Ms Pumpa commenced as a casual employee. She was later offered a traineeship with full-time employment. Ms Pumpa agreed, and she continued to be paid the same rate and started to accrue annual leave. No written agreement was entered. An approved training contract was not yet in place.
4. By the time Ms Pumpa was told a training contract would not proceed, and she would be put back to a casual employee, she had accrued 80 hours of annual leave. She noticed the accrued annual leave was then deleted from her payslips. She enquired by email on 6 February 2022, adding that she was soon to go on maternity leave and was depending on those funds.
5. On 7 February 2022, BRF responded by email that Ms Pumpa would be paid the accrued leave that week. It was not paid.
6. After Ms Pumpa followed up on 10 February 2022, BRF responded on 14 February 2022 with a demand for payment of an asserted overpayment of $2,070.
7. The demand had no explanation, but had a brief spreadsheet attached. The content of the spreadsheet was also unexplained, but its effect was clear. It was an attempt to retrospectively disadvantage Ms Pumpa in four ways. Firstly, it unilaterally reduced the agreed rate of pay to 80%. Secondly, it took away the 80 hours of accrued annual leave entitlement. Thirdly, it attempted to justify not paying Ms Pumpa's last two weeks' wages. Fourthly, it falsely asserted a debt of $2,370. Ms Pumpa later spoke to Mr Totos, who confirmed to her that she owed him the money.
8. Ms Pumpa set out in some detail her distress over the threatened overpayment and the loss of wages and accrued annual leave. She did not know what her rights were, and was worried Mr Totos or BRF would come after her when she was already under financial pressure.
9. The resulting distress was so great that Ms Pumpa needed to attend a hospital on 18 February 2022. Ms Pumpa was medically advised to cease work early; she did not return. This forced early departure from work caused additional financial difficulty. She provided a sick certificate but was not paid any accrued personal leave.
10. BRF included a similarly baseless counter claim in its defence to the contraventions claim, but it was not advanced by either respondent.
11. Ms Pumpa has not received any form of apology from Mr Totos or BRF for all the admitted underpayments and contraventions. BRF paid the superannuation of $782.27 on 2 August 2024.
12. The applicants tendered a copy of a decision of the Fair Work Commission titled Olefir v Brazil Catering Pty Ltd.[6] The described circumstances were said to be relevant to Mr Totos' involvement in management of retail businesses after Ms Pumpa's employment ended. The FWC described Mr Totos as the manager of Feast Delicatessen in Melbourne in February 2024, which had 5 employees when Mr Totos dismissed one of them for reasons that were harsh, unjust and unreasonable.[7]

1. The applicants submit substantial penalties are required to deter the respondents from similar contravening conduct. They submit neither respondent "has exhibited any sign of introspection, let alone contrition, for the contraventions."[8] Mr Totos' relevant conduct includes unreasonably denying his involvement and positively asserting a false factual case in the preliminary hearing.
2. The nature and extent of the contravening conduct involved a flagrant disregard of the minimum Award rates of pay and other conditions over the whole of the employment.
3. Mr Totos' responsibility was high given his extensive experience and acknowledgement that the Award applies, and his dismissal of concerns raised by Ms Pumpa during the course of her employment. His failure to explain the conduct and to demonstrate contrition or any remedial action supports a high need for deterrence.

1. Both respondents made a considered decision to not provide any evidence about the circumstances of the contraventions and the lack of any response other than paying the superannuation.
2. Mr Totos did submit a brief written submission on behalf of both respondents. He submitted BRF operated and administered the business in the same manner as it had been run prior to taking it over.
3. Mr Totos submitted he should have been more familiar with its obligations under the Act, the National Employment Standards and the relevant Award.
4. Mr Totos asserts the respondents showed remorse by offering to pay the unpaid wages, and in refusing to do so because of the associated penalty liability.

1. I consider it appropriate to impose penalties on both respondents for each contravention due to the serious circumstances and the lack of contrition or rectification.
2. The purpose of imposing a penalty for a contravention is to discourage future contraventions, or involvement in them, within the meaning of s 550.[9]
3. I agree with the applicants' submissions regarding the need to: group contraventions of the same obligation arising from the same course of conduct; avoid the double jeopardy of common elements being considered twice; and, then apply the totality principle to the total penalties and consider whether it best serves the deterrent purpose.
4. On this basis there are 14 distinct contraventions, with some having overlapping facts as identified below. The totality principle will then be applied for each respondent.
5. I accept the evidence of Ms Pumpa summarised above. I accept her evidence of her trust and reliance on Mr Totos, and later of her distress and financial disadvantage caused by his actions on behalf of BRF.
6. I accept the little evidence provided by Mr Totos only where indicated.
7. I accept the applicants' general submissions regarding the seriousness of the contraventions by each respondent, their lack of acceptance of responsibility, and the high need for deterrence.
8. I reject Mr Totos' submission that he operated the business in the same way as the previous retailer did. There is no evidence to that effect, and the available evidence does show that Ms Pumpa's duties were increased under BRF. Mr Totos' submission does not account for his personal view about not paying overtime to casuals, his decisions about not paying the last two weeks, and the omission of retaining records of time worked.
9. Mr Totos admitted to knowing that the Award rates had changed, but there was no change to Ms Pumpa's rate. Mr Totos had the means and ability to comply with Award entitlements through his access to the Deputy payroll software.
10. I reject Mr Totos' submission that the contraventions were unintentional and the result of any honest mistakes, or that he was naïve. I also reject Mr Totos' implied explanation for the contraventions being due to a lack of familiarity with the Award and with minimum employment standards.
11. There is no evidence to support either submission. The evidence instead supports a finding of intentional disregard of Award conditions. I rely on the allocation of duties without regard to classifications, the rejection of Ms Pumpa's request for weekly overtime, the disregard of Saturday rates and annual increases to minimum wages, and no evidence of any attempt to comply with any of the breached Award conditions.
12. There is no evidence of Mr Totos applying the correct Award conditions to Ms Pumpa's colleagues in BRF, nor has Mr Totos provided any new understandings of how he applies the Award to his other businesses.
13. I accept the submitted relevance of certain circumstances described in the FWC decision of Olefir. Mr Totos was involved in operating another business concurrently with BRF, but there is no evidence whether that business was operated by Brazilian Catering Pty Ltd. In any event, there is no dispute Mr Totos was its manager, and there were five employees in February 2024. It is also relevant that Mr Totos was authorised to dismiss an employee, but the finding of unfairness of the dismissal is not a relevant factor.
14. The circumstances of BRF's claimed overpayment of wages are only relevant to the non-payment of the last two weeks' wages. The baseless claim demonstrates Ms Pumpa's entitlements were examined and reduced so as to justify withholding her final wages and annual leave. Notably, none of the many Award breaches or direct contraventions of the Act by BRF were identified and corrected at that time.
15. I reject Mr Totos' assertion that the respondents showed remorse by initially considering offering to pay the unpaid wages. There is no evidence to support that assertion. In any event, it is a hollow self-serving statement because only the small superannuation component was ever paid. Mr Totos reveals a resistance to accepting an employer's legal responsibility to comply with the NES.
16. Apart from Mr Totos long experience in operating retail businesses, he owns multiple properties. I conclude he continues to be active in the management of businesses, and that he needs an effective deterrent from being actively or knowingly involved in similar contraventions.
17. There is little information about BRF. It is probably not currently operating a business, but nothing is known about its financial resources. Despite Mr Totos saying it had no money, the superannuation was paid. The absence of information does not result in assumptions of no future employees, and no financial resources.
18. I have determined to impose the following notional penalties for the contraventions based on the above principles and findings, together with additional specific observations.
19. The failure to classify Ms Pumpa's required duties, particularly the more responsible higher duties of closing the store and dealing with cash takings, was key to disregarding and not applying minimum Award rates of pay. Penalties of $10,000 for BRF and $6,000 for Mr Totos are appropriate.
20. The minimum rates contravention extended beyond the wrong classification. It included paying rates during the casual period that were below the lowest Award classification, and the annual increase was ignored. Penalties of $10,000 for BRF and $6,000 for Mr Totos are appropriate.
21. The failure to pay any wages for the three times Ms Pumpa returned to work to complete the end of day procedures simply exploited her high level of responsibility to BRF's business. Penalties on BRF of $5,000 and on Mr Totos of $3,000 are appropriate.
22. The failure to pay any wages for the last two weeks was a serious contravention of s 323. The non-payment was intentional. The circumstances are aggravated by Ms Pumpa's obvious need for those wages as she approached planned maternity leave. This contravention requires a very strong deterrent.
23. The contravention was based on a blatant attempt to reduce the agreed rate of pay after the work had been performed, and to claim part of the paid wages as an overpayment. I impose penalties of $20,000 on BRF and of $12,000 on Mr Totos for the s 323 contravention.
24. Section 535(1) sets out an employer's general records obligation:

An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.

1. Regulations 3.33 and 3.34 of the Fair Work Regulations 2009 prescribe that the hours worked by a casual or irregular part-time employee, or anyone entitled to a penalty rate or loading for overtime, must be recorded and kept. Failure to do so means records cannot be checked, and an affected employee is unable to know if they have been paid properly. The absence of time records caused extra work and difficulty for the applicants in accurately calculating Ms Pumpa's unpaid entitlements. The contravention has not been addressed. I impose penalties of $5,000 on BRF and of $3,000 on Mr Totos.
2. The failure to pay any Saturday loadings contrasted with the paid Sunday loadings, albeit below the correct rates. I impose penalties on BRF of $10,000 and $2,000 for the Saturday and Sunday rates contraventions. I impose penalties of $6,000 and $1,500 on Mr Totos for his involvement in the corresponding contraventions.
3. The failure to pay weekly overtime was in accordance with Mr Totos' unchecked statement to Ms Pumpa that casuals had no entitlement. I impose penalties of $10,000 on BRF and $6,000 on Mr Totos.
4. There is no allegation that Ms Pumpa's superannuation contributions were not correctly paid at the time. The contravention is entirely consequential on the underpaid ordinary rates of pay, which I have already penalised. No additional penalty is imposed.
5. The failure to pay the laundry allowance is another example of this employer imposing obligations on an employee at her expense, without remuneration and in direct breach of the Award. Penalties on BRF of $5,000 and on Mr Totos of $3,000 are appropriate.
6. The failure to grant a paid 10-minute rest break on a standing shift was quite callous, even more so when Ms Pumpa was pregnant. The discipline of rostering and granting these entitlements is required. Penalties on BRF of $10,000 and on Mr Totos of $6,000 are appropriate.
7. The failure to roster the timing of meal breaks added to Ms Pumpa's difficulty in planning and having meal breaks, in that their timing was always secondary to the business' needs. Penalties on BRF of $2,000 and on Mr Totos of $1,500 are appropriate.
8. The failures to provide copies of the Award and the National Employment Standards are significant breaches. The content of these guiding documents was inconsistent with many of the ways BRF treated Ms Pumpa's work. If they had been provided, Ms Pumpa would not have had to rely on Mr Totos' word, and she would probably have realised she was not being paid correctly. Penalties on BRF of $5,000 and on Mr Totos of $3,000 are appropriate.
9. The failure to provide the related and more general FWIS was a similar lost opportunity for checking wages and conditions. Additional penalties on BRF of $1,000 and on Mr Totos of $500 are appropriate.
10. The total nominal penalty imposed on BRF is $92,000 and on Mr Totos is $56,000. I consider the total penalties to be imposed on BRF and on Mr Totos do not need modification to best serve the deterrent purpose.
11. The applicants submit the penalties should be paid to Ms Pumpa. I agree that is an appropriate outcome for all contraventions other than in relation to the time records. As that application was brought by Ms Pumpa's union prior to the underpayment claim being lodged I consider that penalty should be paid to the union. They were penalties of $5,000 and $3,000.

1. I order Barossa Retail Food Pty Ltd to pay within 21 days the penalty of $5,000 to the Shop, Distributive and Allied Employees Association, and the penalty of $87,000 to Zara Pumpa.
2. I order Dimitrios Totos to pay within 21 days the penalty of $3,000 to the Shop, Distributive and Allied Employees Association, and the penalty of $53,000 to Zara Pumpa.

[1] Pumpa v Barossa Retail Food Pty Ltd & Totos [2025] SAET 80 [5].

[6] [2024] FWC 1584.

[8] Applicant's written submissions [3].

[9] Australian Building and Construction Commissioner v Pattinson [2022] HCA 13.